NULSEN HAVEN ASSOCIATION (INCORPORATED) (Migration) - [2019] AATA 3015

NULSEN HAVEN ASSOCIATION (INCORPORATED) (Migration) [2019] AATA 3015 (3 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Nulsen Haven Association (Incorporated)
CASE NUMBER:  1614128
DIBP REFERENCE(S):  BCC2015/3162210
MEMBER:Alison Mercer
DATE:3 April 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 03 April 2019 at 4:33pm
CATCHWORDS

MIGRATION – nomination – Direct Entry nomination stream – not satisfied that the duties of the nominated position corresponded closely enough to ANZSCO – identify a need for the nominator to employ a paid employee – applicant had not identified a need – position must be within the business activities – the position needs to be recognised as the nominated position – applicant has a genuine need for the paid position – nominated position could not be filled by an Australian employee – regional Australia – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 245AR(1), 359(2), 359C, 360(3)
Migration Regulations 1994 (Cth), rr 1.13A, 1.13B, 5.19
CASES

Drake v MIEA (1979) 24 ALR 577
Hneidi v MIAC [2009] FCA 983
Re Drake and MIEA (No 2 ) (1979) 2 ALD 634
Lobo v MIMIA [2003] FCAFC 168
Yang v MIAC [2010] FMCA 890
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 17 August 2016 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant, Nulsen Haven Association Incorporated, applied for approval on 28 October 2015 for the position Residential Care Officer (ANZSCO code 411715). The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4) of the Regulations. The delegate was not satisfied that the duties of the nominated position corresponded closely enough to Australian and New Zealand Standard Classification of Occupations (ANZSCO) occupational description for a Residential Care Officer. Instead, the delegate considered that the nominated occupation was closer to Aged Carer or Disabled Carer. She found that the information provided by the applicant’s agent indicated that the position performed the requirements of plans, programs and Nulsen’s policies and procedures, but was not in charge of planning and/or developing programs, as specified by the ANZSCO occupational description. The delegate therefore found that the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: NULSEN HAVEN ASSOCIATION (INCORPORATED) (Migration) [2019] AATA 3015
Case: [2019] AATA 3015
Decision Date: 3 April 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision concerning a nomination under the Direct Entry stream. The applicant, Nulsen Haven Association (Incorporated), sought approval for a nominated position. The core dispute revolved around whether the nominated position and the nominator met the specific requirements of Regulation 5.19(4) of the Migration Regulations 1994.

The Tribunal was required to determine if the applicant satisfied all the criteria for approval of the nomination. This involved assessing whether the application was in the approved form, accompanied by the prescribed fee, and identified a genuine need for a paid employee under the nominator's direct control. Further, the Tribunal had to ascertain if the nominator was actively and lawfully operating a business in Australia, if the nominated position was not for labour hire, and if the terms of employment met the specified duration and conditions. Crucially, the Tribunal had to consider whether the tasks of the position corresponded to an occupation specified by the Minister, and if the position was located in regional Australia, whether there was a genuine need that could not be filled by a local Australian resident.

The Tribunal found that the applicant met the requirements of Regulation 5.19(4)(a) by submitting a compliant application that identified a need for a paid employee. It was also satisfied that the nominator was actively and lawfully operating a registered charity in Australia, fulfilling Regulation 5.19(4)(b). Regulation 5.19(4)(c) was deemed not applicable as the nominator's business did not involve labour hire. The Tribunal confirmed that the terms of employment met the requirements of Regulation 5.19(4)(d) and (e), and that there was no adverse information known to Immigration, satisfying Regulation 5.19(4)(f). Furthermore, the nominator had a satisfactory record of compliance with workplace relations laws, meeting Regulation 5.19(4)(g). Regarding Regulation 5.19(4)(h), the Tribunal was satisfied that the position and business were located in regional Australia (Cannington, Western Australia) and that there was a genuine need for the paid position which could not be filled by a local Australian citizen or permanent resident, aligning with the criteria for regional nominations.

Consequently, the Tribunal set aside the original decision and substituted a decision approving the nomination.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.The application is compliant: r.5.19(4)(a) Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control. From the material on the Department’s and the Tribunal’s files, the Tribunal is satisfied that the nomination application was made on the approved form and was accompanied by the prescribed fee. The Tribunal is further satisfied that the nomination application identified a need for the applicant to employ a paid employee (Mr Muhammed Umer) to work in the nominated position of Residential Care Officer, under its direct control. As the nomination application was made prior to 14 December 2015, it is not required to include a written certification stating whether the nominator has engaged in conduct in relation to the nomination that contravenes s. 245AR(1). Accordingly, the Tribunal finds that the requirement in r.5.19(4)(a) is met.Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b) Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia. From the material before the Tribunal, which includes the applicant’s 2016/17 and 2017/18 financial statements, and the records of the company’s current registration of its Australian Business Number (ABN) and with Australian Securities and Investments Commission (ASIC), the Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business as a registered charity in Australia. Accordingly, the Tribunal is satisfied that the requirement in r.5.19(4)(b) is met.Position is not labour-hire: r.5.19(4)(c) Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator. There is no indication that the nominator’s activities include any labour hire activities. Accordingly, the Tribunal finds that the requirement in r.5.19(4)(c) does not apply.Term of employment of the visa holder: r.5.19(4)(d) Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.

Decision

Reasons for decision

Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.DECISION The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.Alison MercerMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 19945.19Approval of nominated positions (employer nomination)…(2)The application must:(a)be made in accordance with approved form 1395…; and(b)be accompanied by the fee mentioned in regulation 5.37.…Direct Entry nomination(4)The Minister must, in writing, approve a nomination if:(a)the application for approval:(i) is made in accordance with subregulation (2); and(ii) identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and(b)the nominator:(i) is actively and lawfully operating a business in Australia; and(ii) directly operates the business; and(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and(d)both of the following apply:(i) the employee will be employed on a full-time basis in the position for at least 2 years;(ii) the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:(i) are provided; or(ii) would be provided;to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and(f)either:(i) there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or(ii) it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and(h)either:(i) both of the following apply:(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;(B)either:(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or(ii) all of the following apply:(A)the position is located in regional Australia;(B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;(E)the business operated by the nominator is located at that place;(F)a body that is:(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and(II)located in the same State or Territory as the location of the position;has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).

Ratio Decidendi

Legal Principle Established

Accordingly, the Tribunal finds that the requirements of r.5.19(4)(e) are met.No adverse information known to Immigration: r.5.19(4)(f) Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B. The Tribunal has reviewed the Department’s records, including its Integrated Client Services Environment (ICSE) and has found nothing to indicate that there is any adverse information known to Immigration about the nominator or person associated with the nominator. Accordingly, the Tribunal finds that the requirements of r.5.19(4)(f) are met.Satisfactory compliance with workplace relations laws: r.5.19(4)(g) Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations. There is nothing in the Department’s records or otherwise to indicate that the applicant does not have a satisfactory record of compliance with the laws of the Commonwealth or of Victoria relating to workplace relations. Accordingly, the Tribunal finds that the requirements of r.5.19(4)(g) are met.Tasks of the position genuine need for the position and training requirements r.5.19(4)(h) Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister (see legislative instrument IMMI 16/060), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position. The Tribunal notes that the applicant sought to satisfy the requirements of the second dot point at the time that it made the nomination, on the basis that the position and the applicant’s business were located in regional Australia. The Tribunal is satisfied that the position and the applicant’s business are located in Cannington, Western Australia, postcode 6107, according to the information in the nomination application. It is further satisfied that at the time the nomination was made on 28 October 2015, the relevant legislative instrument (IMMI 13/049) provided that the entire state of Western Australia was designated as regional Australia for the purposes of r.5.19(4)(h)(ii).